Is Ukraine going the way of Russia, suppressing free speech, enforcing censorship, or is it attempting to ensure national security with Draft Law 6688?
It is not necessarily how the law is written in its current form. It is more what is left unwritten and how that can be interpreted. There does not appear to be checks and balances. There does not appear to be any oversight.
The potential for abuse is palpable, hence a rather large wave of #Fuck6688
Even more curious, however, is that this bill has twice been squashed. Now there appears to be a rather powerful force pushing for this bill to go straight to a Rada vote, bypassing normal procedures of discussions. Why? Who is pushing? The SBU? The Minister of Information?
A suspicious haste? Draft Law 6688 (and the Ukrainian Internet)
Almost exactly one year ago, Draft Bill 6688 was submitted to the Verkhovna Rada.
It gained the immediate ire of media, sections of civil society, and perhaps most notably the then Ombudsman for Human Rights in Ukraine, Valerie Lutskovska (who was a pretty good HR Ombudsman).
Recently another attempt to get this Draft Law onto the Verkhovna Rada agenda occurred – and failed, gathering insufficient votes.
However, there appears to be a sudden sense of urgency from somewhere on high to get this Bill from Draft to statute book.
Yet another vote managed to garner sufficient votes to have the Draft Bill placed on the current Verkhovna Rada legislative agenda, and prompted the Verkhovna Rada National Security and Defence Committee (headed by the truly odious Sergei Pashinsky) to forward it to the Verkhovna Rada chamber for a vote without any discussion within the Committee.
So what is Draft Bill 6688 about? It is named “On Amendments to Certain Legislative Acts of Ukraine on Addressing National Security Threats in the Information Sphere.”
Thus it seeks to amend numerous existing laws (including some that will no longer exist and are repealed by the “On National Security” Law signed by President Poroshenko on 5th July). The Draft Bill, when roughly translated into English by the blog, is 15 pages long. (Depending upon font size of course.)
In short, Internet censorship – or less provocatively framed, the ability of the State, via the SBU, prosecutors, investigators and judiciary to temporarily (or “temporarily”) close down/ban access to websites.
Much of the legislative amendments are mundane, adding “cyber”, or “cyber security”, or cyber crime”, or “cyber threat”, or “cyber attacks” to existing statute – and rightly so.
Skipping past proposed amendments to the Law on the SBU, which will be rewritten over the next six months anyway, there is also draft text that adds, or expands, in some cases in very elastic terms, the abilities for blocking of websites, in some cases without judicial process. The “Law on Telecommunications” sees some serious additions to existing text. The Criminal Code of Ukraine too – and by extension the Criminal Procedures Code.
There are other existing legislative acts mentioned, but this is a blog entry that paints in broad brushstrokes.
The Draft Bill is broadly aimed at cyber crime and cyber terrorism – and the State has a duty in this regard.
However some of the text appears somewhat too elastic to be comfortable with – for example “aimed at infringing public safety; intimidating the population; provoking military conflict, international difficulties; influencing decision-making, the carrying out of actions or inaction of public authorities or local self-government bodies by officials of those bodies, civic associations, legal entities to attract public attention to the specific political, religious or other views of the perpetrator” leaps at a reader of the Draft Bill.
Ukraine has obligations under the European Human Rights Act – Article 10 states “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
As such particular care would have to be taken when enacting these amendments (should they become law – and somebody is pushing it to the top of the Verkhovna Rada agenda) on the one hand, and adhering to, and being able to justify any decisions made there under, before an ECHR court should appeals be made relating to freedom of expression. This notwithstanding Ukrainian constitutional rights to freedom of expression.
Who would want to be a Ukrainian judge (anyway) that makes a decision under these new amendments that is subsequently overturned by the ECHR – when falling foul of the ECHR is a mark of notoriety with civil activists monitoring the judiciary?
Further, dependent upon how a reader interprets the draft text, it doesn’t have to be a judge that makes the initial decision. An investigator or a prosecutor can seemingly order a website taken down/blocked for 48 hours while “inquiries” are made. Thereafter a judge can extend (or not if they are prepared to state why they will not) the blocking of a website, without limitation on duration.
A reader may foresee potential problems with such initial arbitrary decisions by enforcement agencies and prosecutors vis a vis Article 10 without any judicial input whatsoever.
Naturally there are fines within the draft amendments for service providers who do not comply. Quite how enforceable they would be if a website is hosted on a foreign server, and with a foreign server that may claim they are upholding a customer’s Article 10 ECHR rights over domestic Ukrainian statute is also a case yet to be heard.
In principle there is no argument that the Ukrainian State should have the legislative means to deal with the cyber issues of criminality and terrorism. Further no law is perfect. Clearly in this case there are also some justified concerns that the amendments to laws are far from perfect too.
Some definitions within the draft amendments are quite sensible – others are far too woolly and require their scope narrowing somewhat (or dramatically). That could be done by numerous amendments to the Draft Amendments between first and second Verkhovna Rada readings of course, but to do so may unnecessarily inflame civil society and the media now electioneering has begun (a wearisome 9 months from elections).
Perhaps the most intriguing question however is why (and no doubt a reader will have their own opinions as to why), the sudden momentum behind this Draft Law which is clearly not quite what it should be or could be?